The steps in the instant case pertinent to a disposition of this appeal are as follows: Spofford, the appellant, filed his bill of complaint in the Circuit Court of Dade County seeking to restrain City National Building, Inc., from trespassing on his right of possession and use of a penthouse located on the roof of the City National Building, a ten-story office building in the city of Miami.
Answer to the bill was duly filed, a motion to amend the bill and strike the set-off or counterclaim contained in the answer were denied and a motion by complainant to dismiss the bill without prejudice was, denied. From that decree this appeal was prosecuted.
Three assignments of error present this question: When a bill of complaint seeks to restrain a trespass on right embraced in an alleged verbal contract of employment and an answer is filed denying any such contract and setting up matters of defense in the nature of set-off or counterclaim should the complainant then be allowed to dismiss or amend his bill by striking that part relating to the cause of action and thereby prevent the defendant from obtaining a complete adjudication of the cause or should a motion to strike the set-off or counterclaim be granted under such state of facts.
The matter of granting or denying these motions involved the discretion of the chancellor who answered each of them in the negative and his answer appears fully supported by the following decisions of this Court: Tilghman Cypress Co. vs. John R. Young Co., 60 Fla. 382, 53 So. 2d 939; Mayfield vs. Wernicke Chemical Co., 65 Fla. 113, 61 So. 2d 191; Town of Punta Gorda vs. Charlotte Realty Inv. Co., 93 Fla. 253,111 So. 631; Phillips vs. Lindsay, 102 Fla. 935, 136 So. 2d 666.
In view of these decisions no, reversible error is shown to have been committed so the decree below must be and is hereby affirmed. *Page 162
Affirmed.
WHITFIELD, P.J., AND DAVIS, J., concur.
BUFORD, C.J., AND BROWN, J., concur in the opinion and judgment.
ELLIS, J., agrees to the affirmance.
ON PETITION FOR REHEARING.